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Family Law Newsletter

Family Law Newsletter Spring 2013: What Happens in Vegas….?

Tuesday, April 02, 2013

By Kristine Ann Cummings

The Bachelor Party. In the UK, it’s known as “Stag Night”; in France, “enterrement de vie de garcon” – literally, “burial/funeral of the life as a bachelor.” For grooms-to-be across the globe, it is a time honored tradition, and in the US, Las Vegas is commonly known as the ideal destination for this debaucherous weekend of gambling, drinking and good-natured hazing.

Perhaps thanks to the oft-uttered mantra of “what happens in Vegas stays in Vegas”, most bachelors return home no worse for the wear. For others, however, “what happened in Vegas” has resulted in damaged or broken marriages, and one Massachusetts husband will be paying the price for his misdeeds in cold hard cash.

In the recent divorce case, a judge of the Probate and Family Court ordered a husband to pay to his former wife $2,100 per month in alimony for a period of one year, as well as to make a lump sum payment of $29,500 as his “contribution to the debt and diminished assets incurred during the marriage.” While such a Judgment may not seem remarkable on its face, this case is distinguished by the fact that the parties were essentially “married” for less than seven weeks. The trial court’s decision was upheld by the Massachusetts Appeals Court. [1]

The parties in this case were both highly educated professionals in their late thirties; the husband worked as a physician and the wife as a department director at a medical facility. Approximately two years before their marriage, the husband moved into a condominium unit in Boston that the wife purchased for $435,000, making the down payment of $43,500 from her own funds.

Some five days prior to the parties' wedding, the husband went to Las Vegas for his bachelor party. While there, he met a woman with whom he became romantically involved, and further incurred a $20,000 charge at a “men's club.” Upon the husband's return, the parties celebrated a lavish wedding paid primarily by the wife’s parents.

Shortly after their wedding, the wife learned of both the husband’s affair as well as of the $20,000 men's club charge. Not unexpectedly, this revelation, combined with other factors such as “poor communication between the parties” (as described by the court) resulted in the ultimate breakdown of the marriage; the parties separated approximately seven weeks after their wedding date.

The husband thereafter moved to California to be closer to his new paramour; he eventually secured employment as a physician earning $160,000 per year. However, the wife suffered severe distress as a result of the breakup of the marriage, and was also afflicted with numerous mental disorders such as posttraumatic stress, anxiety and depression. Although the trial court judge found that the breakup was not the sole or even principal cause of the wife’s health issues, these conditions indisputably impacted the wife’s ability to earn income; notably, she was hospitalized for a period of time following the separation and at one point took a leave of absence from her employer.

At the time of the divorce, the wife’s condition had improved, but she remained on partial medical leave earning a reduced-salary of $75,000 per year. While both parties’ assets were diminished after the separation, the wife’s suffered a greater financial blow, partly because the sale of the condo in which the parties had resided resulted in a net loss to the wife.

After trial, the judge acknowledged that neither party had contributed toward the assets of the other, that the parties had kept their finances separate, and that given the brevity of their relationship, they never had time to come together to form a marital partnership or acquire a marital estate. However, the judge nonetheless found that when the parties were together, they enjoyed an upper middle class station in life which they each should be able to maintain following the divorce.

In ordering the husband to pay alimony and make a lump sum payment to the wife from his property, the trial judge was careful to note that her decision was not based on the husband’s bad behavior, acknowledging that “she could not award property or order support based solely on the fault of one party.” However, the judge gave great weight to the husband’s spending during the marriage, taking particular note of the fact that the husband expended at least $22,000 during the marriage in connection with his affair and Vegas escapades, as well as to the fact that the wife netted $37,000 less than the original purchase price as a result of selling the marital condo.[2] As these losses totaled $59,000, the judge held that it was equitable for the husband to bear responsibility for one-half of same, thus ordering him to pay to the wife $29,500 as “a contribution toward the diminished assets”. Further, the judge did not rely solely on the wife’s mental health in fashioning her alimony award, but properly considered all of the factors set forth in our alimony statue, including the wife’s need for support and the husband’s ability to pay. [3] While the judge accorded substantial weight to the wife's emotional health issues, she viewed that factor “as the proverbial stone thrown into the pond, its ripple effects touching on other factors, including the wife's present ability to work full time, her current income, and her needs.”

Although the husband’s challenge of the alimony award was based in part on the argument that there was no time to form a marital station or standard of living given the brevity of the marriage, the Appeals Court upheld the trial court’s judgment, finding that (1) a short term marriage does not necessarily preclude an alimony award; (2) that the parties had nonetheless attained a particular standard of living and (3) in fashioning an award for alimony of limited duration, the wife was provided sufficient support to meet her "realistic" needs for a period that would allow her to recover sufficiently from her emotional health issues to engage again in full-time employment.

Until recently, limited duration alimony awards such as the one ordered above were uncommon in Massachusetts; alimony was typically indefinite and ordered only after a mid-length to long-term marriage. However, the recent passage of the Alimony Reform Act of 2011 has changed the landscape of alimony in the Commonwealth, setting durational limits for “general term alimony” that are tied to the length of the marriage as well as providing for rehabilitative, reimbursement, and transitional alimony.

At the time of trial on the parties’ case above, the Alimony Reform Act was not yet in effect, thus the Probate Court’s order, when fashioned, was unusual, unlabled and carefully crafted in light of the parties’ unique circumstances. However, when considered in the context of our new laws, the order entered above squarely falls into the category of “rehabilitative” alimony, and the Appeals Court took note of the fact that this seemed the intent of the judge. Although no appellate cases have specifically defined how trial courts should properly award “rehabilitative” alimony under the Alimony Reform Act, the facts of the case discussed herein shed some light on how our new laws may be applied. While the lay of the land is still undefined, one lesson seems certain given the facts of T.O. and L.O.’s divorce: a wild night out in Sin City” may now leave you not only in the doghouse, but in the poorhouse as well.

Kristine Ann Cummings is a graduate of Boston College Law School (J.D., 2007) and Temple University (B.A., summa cum laude, 2004). During law school, Kristine served as a clerk at the Massachusetts Office of the Attorney General and with the Suffolk County District Attorney's Office.

Kristine's practice encompasses all aspects of family law and probate litigation, including divorce, custody, modification, removal, domestic violence and paternity issues, as well as equity actions, contested guardianship cases and fiduciary litigation regarding trust and estate matters.

For the last three years, Kristine was recognized by Law & Politics as a "Massachusetts Rising Star" in the area of Family Law. Only 2.5% of lawyers under the age of 40 are selected for the list, which is published annually by a Thomson Reuters rating service in Boston Magazine. Kristine is also ranked at the highest level of legal ability and ethics, "AV", in the Martindale-Hubbell Law Directory.

Kristine presently serves on the Steering Committee of the Family Law Section of the Boston Bar Association, where she holds the position of Pro-Bono Committee Co-Chair as well as a member of the Newsletter Committee. She has lectured on general issues raised by military service in the context of domestic relations matters in connection with pre-deployment seminars for service members mobilizing for Overseas Contingency Operations. She also contributes towards materials for the bi-annual Probate and Family Court Judicial Forum program presented through Massachusetts Continuing Legal Education.

[1]T.E v.A.O, 82 Mass.App.Ct. 586 (2012). Because certain impoundment orders were entered in the case, the Appeals Court used fictitious initials for the parties.

[2] Although the men's club costs of $20,000 were incurred by the husband prior to the parties' wedding, the husband did not actually pay the sum due until after the marriage.

[3] Massachusetts General Laws Chapter 208 Section 34 sets forth all of the factors a court must consider in awarding alimony, including but not limited to the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.